Case open

by Mark Borkowski

A carrier’s right to defend a wheel separation charge by entering a “due diligence” defense will be decided by the Ontario Court of Appeal some time this fall and a recent victory by the WeirFoulds legal firm may help overturn the much criticized legislation.

In response to two fatalities in the mid 1990s resulting from wheel separations, the Ministry of Transportation amended the Ontario Highway Traffic Act to make the offence of a wheel separating from a truck one of absolute liability. What this means, has become all too clear for motor carriers: Once the Crown proves that a wheel has come off the truck, the carrier will be found guilty; there is no opportunity for the carrier to raise the defense of due diligence and show that it took all reasonable care to avoid the offence. A conviction results in a fine of up to $50,000 and an automatic 6 CVOR points.

But Carole McAfee Wallace, a Transportation Lawyer at WeirFoulds LLP in Toronto and Senior Transportation Lawyer Robert Warren, have had recent success in defending a carrier on a wheel separation charge. First, a challenge was launched on the basis that depriving a carrier of the right to defend such a serious charge by taking away the defense of due diligence offended the Canadian Charter of Rights and Freedoms. The court held that the absolute liability offence violated the presumption of innocence set out in section 11(d) of the Charter. In addition, by denying the defendant’s right to rely on the defense of due diligence, the only defense available, the defendant is denied the right to a fair trial. As a result, the section of the Highway Traffic Act making a wheel separation an absolute liability offence was “read down” to one of strict liability and the trial proceeded with the defense of due diligence.

The court dismissed the charge on the basis that the defense of due diligence was proven.

The Ministry appealed this decision to a Provincial Court Judge on, among other grounds, that the court erred in finding that the absolute liability offence and the inability to raise the defense of due diligence violated the Charter.

The Appeal Judge assessed the seriousness of the punishment and the seriousness the legislature attached to the offence in order to determine how much, if any, stigma attaches to a conviction.

The Appeal Judge concluded: that the penalty for an infraction of s. 84.1(1) is a serious sentence, and, by making the penalty so serious, the legislature has: increased the stigma attaching to this regulatory offence. He added that by depriving a person of the opportunity to show that he or she exercised due diligence to avoid or prevent the detaching of the wheel, security of the person is violated not in accordance with the principles of fundamental justice and violates s. 7 of the Charter.

The Appeal Judge also held that because s. 7 of the Charter requires the defense of at least due diligence, s. 84.1 as a whole violates s. 11(d) of the Charter which protects the right to be presumed innocent until proven guilty in a fair and public hearing.

McAfee Wallace says that this case is a very important decision on the interpretation of “security of the person” protected by s. 7 of the Charter; for the first time the court has expanded the protection of s. 7 to regulating offences where there is no possibility of imprisonment. (She can be contacted

This represents a significant victory to the trucking industry as a whole in dealing with wheel separation charges, and also has application to a variety of regulatory offences.

However, a decision of a Provincial Court Judge in Thunder Bay dealing with the same section of the Highway Traffic Act, held that s. 7 of the Charter was not violated by the absolute liability offence. Leave to appeal this decision to the Ontario Court of Appeal has been granted and is expected to be argued this fall. Given that there are now two conflicting decisions on this issue, the Ontario Court of Appeal will have the next word on the constitutionality of s. 84.1 of the Highway Traffic Act, sometime this fall. This may represent carriers’ best chance to date to get the court onside with what the industry has said all along: absolute liability is absolutely wrong.

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